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UPDATE: Prosecution in Larkin murder case dealt another blow

July 2nd, 2014 12:11 pm by Becky Campbell

UPDATE: Prosecution in Larkin murder case dealt another blow

Dale Larkin (center) in court on Wednesday (Becky Campbell/Johnson City Press)

A judge threw another wrench into the state’s murder case against Dale Larkin on Wednesday, ruling that prosecutors cannot use evidence from a forensic anthropologist whose work helped a pathologist form her opinion his wife’s death was a murder.

Judge Jon Kerry Blackwood also ruled the state cannot file an interlocutory appeal of his December order prohibiting the forensic pathologist from testifying if there is another trial. He also clearly opened the door for the case to be dismissed if the state cannot find another expert within 60 days who can testify about Teri Larkin’s cause of death.

Larkin, 59, was convicted in 2011 for the 2003 drowning death of his wife, Teri Larkin, in a bathtub at their Shadowood subdivision home. The delay between her death and Larkin’s arrest was due to an initial finding that Teri Larkin’s death was not a homicide.

The case was overturned, in part, because the forensic pathologist prosecutors used, Dr. Darinka Mileusnic, previously worked for the defense in a wrongful death suit stemming from Teri Larkin’s death. he Court of Criminal Appeals ruled the state did not meet its burden to prove first-degree murder and Larkin could only be tried on second-degree murder.

In that civil case, Mileusnic said she could not determine cause of death based on her review of the first autopsy report prepared by forensic pathologist Dr. Gretel Stephens.

During the hearing Wednesday, District Attorney General Tony Clark said Judge Jon Kerry Blackwood’s ruling in December that forensic pathologist Dr. Darinka Mileusnic’s evidence was tainted left the state in limbo, because Clark wasn’t sure if testimony and evidence from Dr. Murray Marks would be allowed. That’s why Clark asked permission to file an interlocutory appeal.

An interlocutory appeal is an appeal of a particular issue or ruling while a case is pending. The state had 30 days to ask for an interlocutory, but did not file by the deadline. Clark argued that he was waiting for Blackwood to clear up confusion over whether Marks would be allowed to testify. Blackwood ruled Wednesday that the 30 days had passed, so he denied the state’s request to appeal the order.

Marks is a forensic anthropologist, and examined Teri Larkin’s bones to form an opinion on what injuries she suffered. Mileusnic used that information in forming her opinion that Teri Larkin was murdered.

When the CCA remanded the case back for trial on the second-degree murder charge with the ruling Mileusnic couldn’t testify, prosecutors thought they could simply hand Mileusnic’s work to another pathologist to get an opinion on cause of death.

Blackwood put the brakes on that plan and ruled that nothing that Mileusnic produced — reports or photographs — could be used for that purpose. Then the state thought it could use evidence from Marks, but Blackwood on Wednesday said that won’t happen either.

“Dr. Marks, in my opinion, was going to testify about the condition of bones that Dr. Mileusnic used to determine cause of death,” Blackwood said.

“Marks came into the case because of Dr. Mileusnic, therefore, Marks is disqualified from testifying. His work product was a result of Dr. Mileusnic,” the judge ruled.

The decision has effectively shut down the state’s case against Larkin unless prosecutors can find a forensic pathologist to look at the first autopsy and come to the conclusion Teri Larkin was murdered.

Given the testimony of Stephens, the pathologist who performed that autopsy, and testified she could not determine cause of death, it could prove a difficult task for the state.

“All we’re left with is testimony of Dr. Stephens, who could not determine cause of death,” Clark said at one point in the hearing.

When Stephens testified at Dale Larkin’s trial in 2011, she said that after reviewing Mileusnic’s work, she also believed Teri Larkin was murdered.

With Blackwood’s ruling, that testimony would also not be allowed if the state takes Larkin to trial again.

Blackwood said he wants to be fair to both sides, so he gave the state 60 days to find another expert on the cause of death issue. If none is found, Blackwood said, ”the case would have to be dismissed.”

Larkin, who served just over two years in prison after his conviction in 2011, remains free on bond while the case is pending.

Larkin appeared in court Wednesday with a slew of supporters and his defense team, Jim Bowman, Penny White and Jonathan Minga.

Follow Becky Campbell on Twitter @CampbellinCourt.

Like her on Facebook: www.facebook.com/BeckyCampbellJCPress.

Earlier reported:

A judge threw another wrench into the state’s murder case against Dale Larkin on Wednesday, ruling that prosecutors cannot use evidence from a forensic anthropologist whose work helped the pathologist form her opinion.

Judge Jon Kerry Blackwood also ruled the state cannot file an interlocutory appeal of his December order prohibiting the forensic pathologist from testifying if there is another trial

Larkin, 59, was convicted in 2011 for the 2003 drowning death of his wife, Teri Larkin, in a bathtub at their Shadowood subdivision home. The delay between her death and Larkin being arrested was due to an initial finding that Teri Larkin’s death was not a homicide.

The case was overturned, in part, because the forensic pathologist prosecutors used, Dr. Darinka Mileusnic, had previously worked for the defense in a wrongful death suit stemming from Teri Larkins death.  The Court of Criminal Appeals ruled the state did not meet it's burden to prove first-degree murder and Larkin could only be tried on second-degree murder.

In that civil case, Mileusnic said she could not determine cause of death based on her review of the first autopsy report prepared by forensic pathologist Dr. Gretel Stephens.

During the hearing Wednesday, District Attorney General Tony Clark said Judge Jon Kerry Blackwood’s ruling in December that forensic pathologist Dr. Darinka Mileusnic’s evidence was tainted left the state in limbo because Clark wasn’t sure about testimony and evidence from Dr. Murray Marks.

Marks is a forensic anthropologist and examined Teri Larkins bones to form an opinion on what injuries she suffered. Mileusnic used that information in forming her opinion that Teri Larkin was murdered.

Check back later for a full story from the hearing.

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